'Majority government seems likely to be back with a vengeance': what to look for in post-Brexit legislation

Written by Jill Rutter and Joe Owen on 24 March 2020 in Opinion

Opinion

"There is still a lot more Brexit legislation to come – and in substance, at least, it could prove controversial"

Photo: PA

in current circumstances it is hard to recall that just two months ago, on 23 January the EU (withdrawal agreement) bill, or WAB, became an act. Just shy of three years after parliament legislated to give the prime minister powers to notify the EU that the UK intended to leave, parliament agreed to the terms of the UK’s departure. In the meantime, parliament has transferred the EU statute book into UK law, with tweaks made through secondary legislation to ensure a functioning statute book.

But there is still a lot more Brexit legislation to come – and in substance, at least, it could prove controversial. Most of it is not new: Theresa May’s government introduced a raft of Brexit bills – but the major ones got stuck, as her precarious parliamentary position left them vulnerable to amendment.

Apart from the WAB, the Queen’s Speech listed another six Brexit bills: on agriculture, fisheries, immigration, trade, financial services and private international law. Since then the government has introduced a stopgap bill to allow it to make payments to farmers for 2020 – payments that need to be made before the new agriculture bill may be on the statute book. Most people would add another bill to the Brexit list: the 130 clause (and 20 schedule) environment bill developed in Defra under Michael Gove.

The passage of the WAB shows that the government is in no mood to see its legislation amended: it has a Commons working majority of 87 and a pretty united party, and is determined to use them. So it’s a fair bet that all of these bills will end up on the statute book looking much like they did when they were first drafted. But there is a danger of ramming legislation through parliament and ignoring parliamentary concerns: they just could come back to bite government down the line.

The last parliament tried to use these bills as vehicles either for preventing a Brexit outcome it didn’t like or to limit the government’s room for manoeuvre on future trade agreements. But with the battle over whether or not Brexit will happen now over, MPs need to focus on what these bills will do to set the framework for UK policy for years (and perhaps decades) to come.

The trade bill is needed to enable ministers to implement existing trade deals which are rolled over after we leave the EU – and to run the UK’s own trade defence policy through establishing a new quango, the Trade Remedies Authority. Both of these have been the exclusive competence of the EU since we joined in 1973, which makes the provisions clearly necessary. But parliamentarians were concerned that they would have little say over the deals that the UK government negotiated, so moved amendments to assert parliamentary control. This is likely to be an issue again – but the government’s approach to the WAB – where it stripped out provisions for parliamentary oversight suggests that it is likely to insist on a free hand. That would leave MPs relying on the weak provisions of the 2010 Constitutional Reform and Governance Act to object to any future deals.

The agriculture bill is a vehicle for radical overhaul of the way in which payments are made to farmers after we leave the Common Agricultural Policy – in England at least. It opens the way to link payments to the provision of public goods, rather than to simply holding land. The bill has been slightly modified since its purist version under Theresa May, under pressure from farmers concerned at the absence of mentions of food production or food security. But in the last parliament MPs saw the bill as a vehicle to insist that the UK should not draw back from high animal welfare or environmental standards in future trade deals. Ministers have said that they will not do deals that reduce standards – but they may be reluctant to tie their own hands in a way that makes a deal with the US harder to secure.

The fisheries bill is designed to give government the powers it needs to “take back control” of UK fishing waters. The powers themselves are not a big deal: what matters is what deal the UK negotiates with the EU. The EU is looking for an early agreement on continued access to UK waters after Brexit for EU fishing fleets, perhaps as a precondition of a wider trade deal. We don’t yet know how the UK government plans to play this, but parliament may try to influence the negotiations through the bill. Again the government is likely to resist, unless it sees advantage in being able to cite parliamentary pressure in the negotiations.

The immigration bill is needed to end free movement. But the real detail of the new migration system will – as always – be enacted through regulations, which will implement the government’s new points-based system. But parliament might try to revive some of the amendments tabled and defeated during the passage of the WAB – to give EU citizens already here rights to apply if they miss the settled status deadline and some physical proof. The government was unconvinced then – and is unlikely to be convinced in the future.

The final big bill is the blockbuster environment bill, which puts the targets in the government’s 25-year plan into law, and sets up a new Office for Environmental Protection with oversight and enforcement powers, designed to fill what environmental groups call the “governance gap”. This is a key part of the post-Brexit supervision machinery – and may be important in reassuring the EU of the UK’s commitments to maintain standards. Expect a battle, especially in the Lords, about how to make the OEP as independent of government as possible.

One common theme of all of this legislation is the broad powers that the government plans to take in order to carry out policy changes. These are framework bills, which leave a lot of the detail out – to be filled in by secondart legislation. This will likely be a big feature of the debate – particularly in the Lords.

There is one final area of controversy. These are all UK bills – but they all impinge on the powers of the devolved administrations. The UK government enacted the WAB despite all the devolved legislatures refusing legislative consent – the first time that has ever happened. The same may happen with these bills as a further test of strength between Whitehall and Westminster and Holyrood, Cardiff and Belfast.

On all of these issues, dissenting MPs, peers, and the devolved governments will struggle to assert their will against the Johnson juggernaut. Majority government seems likely to be back with a vengeance.